R v Y HC Ak CRI 2009-004-18467

[2010] NZHC 46

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2009-004-18467

THE QUEEN

v

Y

Charges:         Possession of Class C drug, namely pseudoephedrine, for supply

Attempting to offer to sell Class C drug, namely pseudoephedrine

Plea:               Guilty

Appearances: Kirsten Lummis for Crown

John Haigh QC for Prisoner

Sentenced:     9 February 2010

12 months home detention

SENTENCING NOTES OF HARRISON J

SOLICITORS

Meredith Connell (Auckland) for Crown

Lucas & Mabin (Auckland) for Prisoner

COUNSEL John Haigh QC

R V Y HC AK CRI 2009-004-18467  9 February 2010

[1]      Mr Y  , you appear for sentence today following pleas of guilty in the District  Court  to  charges  of  possessing  pseudoephedrine  for  supply  and  for attempting to offer to sell that drug.   You are aware that the maximum terms of imprisonment available on each are between eight and four years.

Facts

[2]      The sentence which will be imposed will be determined by the facts of this case.  I deal with them first.

[3]      On 4 March 2009 you parked your car in Balmoral.   You walked to the intersection of Bellwood Avenue and Dominion Road.   You were seen holding a pink Bendon lingerie bag.  You were seen to be looking up and down the road.  You appeared to be waiting to meet somebody.  I am satisfied that that was your purpose. You were there for a pre-arranged meeting to pass over the contents of the bag in exchange  for  money.    Fortunately  the  meeting  did  not  take  place.    When  you returned to the car, the police spoke to you.

[4]      The police conducted a search of your vehicle and of the bag.  Inside the bag were five ziplock bags.  Each contained 200 grams of pink granules.  The total was, of course, one kilogram.  Those granules were pseudoephedrine.  You know that is the base ingredient or chemical for manufacturing methamphetamine, a banned drug.

[5]      The police arrested you and then searched your house at 48A Budgen Street, Mt Roskill.  In a locked bag in a storage cupboard they found a further eight ziplock bags.  Each of them contained 200 grams of pseudoephedrine.  Thus the total amount of pseudoephedrine in your possession, combining what was found in the car and the house, was 2.6 kilograms.  Ms Lummis for the Crown says that this is sufficient to make between 500 and 700 grams of methamphetamine with a potential street value of $730,000.  On your behalf Mr Haigh takes issue with that amount.  I do not have to determine that question.  I am satisfied that the potential yield was in the range of at least $500,000.

[6]      Against those facts I must come to the starting point for your sentence.  The starting point  is  the length  of  imprisonment  which  is  appropriate to  punish  the circumstances of the offending.  Once that exercise is completed I will then take into account any adverse or bad or favourable or good personal circumstances.

[7]      I need not dwell unduly on the starting point.  Ms Lummis very fairly accepts a submission made in the District Court by the Crown that three years is appropriate. Mr Haigh submits that something just under is appropriate.  I approach the question in this way.  As the Court of Appeal has said, a comparison must be drawn between this type of offending and the ultimate crime of manufacturing methamphetamine. The   comparison   is   to   be   made   by   reference   to   the   potential   yield   of methamphetamine which could have been manufactured from the pseudoephedrine. In one similar case, the Court of Appeal upheld a starting point of three  years imprisonment.   On reading that decision I accept that the circumstances of this offending were a little more serious.

[8]      Mr Y  , you are an intelligent man.  You have been in New Zealand long enough to know that methamphetamine is a very destructive drug.  You also know that pseudoephedrine is the base compound.   Methamphetamine destroys lives.   It destroys relationships.  You were prepared to make money off the misery of other people.  In return you were to receive a payment of $3,000.  You must have known that you were taking a significant risk.  You may have been naïve, as Mr Haigh says. You may also, as he says, have been at the bottom of the chain.  But without people like you who are prepared to act in this unprincipled way, no-one would be able to manufacture  methamphetamine.     You  have  committed  a  very  serious  crime, Mr Y  , against your new society.

[9]      Having given this question serious thought, I accept that I must apply a starting point of three years imprisonment.  However, I am of the personal view that that is far too lenient or generous.  Were it not for Court of Appeal authority, I would have applied a starting point of between four and five years imprisonment.  You are fortunate.

[10]     Against that starting point of three years, I must make some allowances. First, I take into account your personal circumstances.  You are 29 years of age.  You were born in China but you are now a New Zealand citizen and have lived here for some years.  You are of previously exemplary character.  You are a well educated man.  Except for this event, you have conducted yourself in a perfect way.  You are now happily married.  Your wife is very dependent upon you.  I need not say too much about her medical circumstances.  I accept that you present little prospect of re-offending.

[11]     Normally, Mr Y  , personal circumstances do not count for much when people are being sentenced for this type of offending.  But, as you heard me say to counsel, I am prepared to take that factor into account.   On its own it justifies a reduction in the starting point of six months to two-and-a-half years imprisonment.

[12]     Second, there is your plea of guilty.   It is very important.   It reflects your remorse.  It is an expression of your sorrow and an apology to the community.  That is also entitled to considerable weight.   In the circumstances of this case, without being too mathematical, I am allowing another six months from the adjusted starting point.  The ultimate term of imprisonment which is appropriate is two years.  As you heard me say to Mr Haigh, I do not think that a debate about whether you entered your plea at the earliest possible opportunity or not will be of any relevance.  I repeat that the end appropriate sentence is two years.

Home detention

[13]     I  come  to  the  most  difficult  issue.    It  is  whether  or  not  to  impose  the alternative sentence of home detention.   Normally, as Mr Haigh understands, the principles of deterrence and denunciation in this type of offending make imprisonment inevitable.    However, I have given his submissions careful consideration.  Without going into detail, I am satisfied that in your case a sentence of home detention would be appropriate.   That would be the maximum term of

12 months.  I agree with Mr Haigh that home detention will be to the advantage of the community and will assist in your rehabilitation.  But, Mr Y  , home detention is not an easy option.   You will be confined to the physical boundaries of the property for  a  period  of  12 months,  unless  you  leave  with  the  approval  of  the Corrections Department to attend work or other courses.   I am satisfied also that home detention will enable you to provide support to your wife and help in your more full integration into New Zealand society.

[14]     In the circumstances  you are sentenced to home detention for a term of

12 months on these conditions:

(1)You are to proceed directly to 48A Budgen Street, Mt Roskill and wait there until your home detention connection is made by a supervising probation officer;

(2)You are to live at that address for the next 12 months and you are not to move without the prior approval of the probation officer;

(3)You are not to take or change employment without the approval of the probation officer;

(4)You are to undertake any counselling and programme if directed by the probation officer.

[15]     There you are, Mr Y  .  You can thank Mr Haigh and Mr Wong and others who have supported you for this result.  For what it is worth, I am confident that, while you have committed a very serious crime against New Zealand society, you will learn your lesson and will not re-offend.  You know that if you do this sort of thing again you will go to prison for a very long time and you will be stripped of your citizenship rights.  Otherwise, if you make efforts to show yourself as a good

and proud New Zealander, I wish you well in the future.  Please stand down.

Rhys Harrison J